Judge: Aurora Planned Parenthood clinic can wait

James KimberlyTribune staff reporter

A federal judge Thursday turned down Planned Parenthood's request for an emergency court order that would allow it to open a new health clinic in Aurora that would provide abortions among other health-care services for women.

"We don't know when we will be able to open," Steve Trombley, president of Planned Parenthood/Chicago Area, said after the hearing before U.S. District Judge Charles Norgle in Chicago.

Abortion opponents battling the clinic celebrated the judge's decision. Eric Scheidler, spokesman for the Pro-Life Action League, called the judge's decision "a victory for life and a victory for choice."

Planned Parenthood filed a lawsuit last week requesting an injunction that would require the City of Aurora to issue it an occupancy permit. Planned Parenthood attorneys said they will return to court with an amended motion, although they did not set a date.

The city also could decide to grant an occupancy permit, making the lawsuit moot. No court date has yet been scheduled on the suit.

Planned Parenthood built a 22,000-square-foot, $7.5 million clinic at 3051 E. New York St. and planned to open it Tuesday. Last week, Aurora notified Planned Parenthood that it would not allow the opening until an investigation of how building permits were obtained for the project was completed.

Planned Parenthood has admitted to applying for permits under a different name to avoid alerting abortion opponents but insists it did nothing wrong. It contends that the city decided to withhold the agency's permits only after getting pressure from abortion opponents.

On Thursday, after a two-hour hearing before a packed courtroom, Norgle ruled that Planned Parenthood had not met the legal standards to qualify for a preliminary injunction. Norgle laid out for Planned Parenthood attorneys where their case was deficient and told them that if they asked, he likely would grant a request to amend their motion with additional evidence.

"By no means is this case over," Norgle said.

Trombley vowed to return to court soon with an amended complaint in a new attempt to open the clinic.

"Our main concern is that every day our health center is not open, more women go without Pap tests, birth-control supplies and breast exams. These are critical services that this community has been lacking and that we will provide," Trombley said in a written statement.

Planned Parenthood officials said fewer than 10 percent of the services they offer are abortion-related. Officials said they had 13 appointments scheduled for Tuesday and that those patients and others have been sent to other clinics.

Aurora is investigating whether Planned Parenthood committed fraud when it applied for building permits under the name of its subsidiary, Gemini Office Development LLC. Specifically, Aurora officials express concern because in an application for a building permit, Gemini wrote that it was "unknown" who its tenant would be.

Also, in November 2006 during a hearing before a City Council committee, a Gemini representative, when asked who would occupy the building, answered, "We're in negotiations with a tenant; we do not currently have one but we still want to move ahead."

Attorney Lance Malina, who represented the city in court Thursday, told Norgle that Aurora should have the right to investigate whether fraud was committed.

"The city expects honest answers from people who want to develop land in their city," Malina said.

Christopher Wilson, the lawyer for Planned Parenthood/Chicago Area, said the answers given at the hearing and on the permit were technically true at the time because it had not been decided which Planned Parenthood entity would occupy the building.

Wilson noted that Aurora did not launch its investigation until after hundreds of people crammed City Council meetings to oppose the clinic. He accused Aurora of using the investigations to delay the opening of the clinic, which would be unconstitutional, he said.

"When they found out the type of services we provide, they went back with tweezers and the microscope to see if there was any way they could stop us," Wilson said.

The investigation has dragged because of unforeseen problems, city officials said. Wilson likened the investigation to something in a Marx Brothers movie.

The city first appointed Chicago attorney Richard Martens to investigate, but some members of the City Council complained of a conflict because he had once clerked for the law firm representing the city. A week later, the city appointed Itasca-based attorney Phillip Luetkehans to conduct the investigation. But objections were raised after it was learned he donated to the failed mayoral campaign of City Councilman Richard Irvin.

Aurora has now asked Kane County State's Atty. John Barsanti to review the investigatory reports prepared by Martens and Luetkehans and advise the city on whether any laws were broken and on its options under the civil code.

The battle over the clinic has become a national issue in part because of the large crowds that abortion opponents have drawn. In addition to crowded City Council meetings, several rallies outside the facility have drawn hundreds of people and, in one case, more than 1,000.

Aurora officials applauded the judge's ruling.

"We are pleased the court upheld the city's right to conduct a thorough review of the facts surrounding the development process. Legitimate questions have been raised about whether Gemini Office Development and Planned Parenthood were forthcoming in their dealings with the city and followed all local laws," city spokeswoman Carie Anne Ergo said in a written statement.